United States v. Lucero
2013 U.S. App. LEXIS 7516
| 10th Cir. | 2013Background
- Lucero pled guilty in 2003 to possession of over 50 grams cocaine base with intent to distribute (Count 1) and possession of a firearm in furtherance of a drug trafficking crime (Count 2).
- At sentencing, 126.3 grams of cocaine base yielded a base level 32; with acceptance of responsibility, Count 1 range was 121–151 months; 10-year mandatory minimum applied under 21 U.S.C. § 841(b)(1)(A).
- Lucero was sentenced on Count 1 to 121 months and Count 2 to 60 months, consecutive, for a total of 181 months.
- In 2007 and 2010 amendments reduced the cocaine base offense level and directed retroactive application; FSA increased the trigger threshold for the ten-year minimum from 50 to 280 grams.
- Lucero filed a second § 3582(c)(2) motion in 2012 arguing FSA and subsequent amendments (and Dorsey) require applying the new mandatory minimums; the district court denied, but sua sponte reduced Count 1 to 120 months; appeal followed to challenge retroactivity and authority to reduce pre-FSA sentences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FSA reductions apply retroactively to pre-FSA sentences in §3582(c)(2) motions. | Lucero argues Dorsey extends retroactivity to post-FSA relief. | Lucero contends FSA is not retroactive for pre-FSA sentences. | No retroactive application; FSA does not apply to pre-FSA sentences in §3582(c)(2) motions. |
Key Cases Cited
- United States v. Foster, 706 F.3d 887 (7th Cir. 2013) (affirming denial of § 3582(c)(2) reduction for pre-FSA sentencing under FSA)
- United States v. Lewis, 625 F.3d 1224 (10th Cir. 2010) (FSA not retroactive (overruled in part by Dorsey))
- United States v. Osborn, 679 F.3d 1193 (10th Cir. 2012) (applies pre-FSA minimum when §3582(c)(2) reduction would not lower guideline range)
- United States v. Cornelius, 696 F.3d 1307 (10th Cir. 2012) (FSA does not retroactively extinguish pre-FSA mandatory minimums)
- United States v. Berry, 701 F.3d 374 (11th Cir. 2012) (denial of §3582(c)(2) reduction where FSA minimums applied)
- Dorsey v. United States, 132 S. Ct. 2321 (2012) (limited retroactivity to post-FSA sentencing for post-FSA conduct)
- United States v. Battle, 706 F.3d 1313 (10th Cir. 2013) (narrow authority to modify sentence under §3582(c)(2) per 1B1.10)